In Australia formal Wills are documents made in writing and signed by the Willmaker in the presence of two independent witnesses.
A Will that fails to meet these requirements is known as an informal Will and under Western Australian and other Australian legislation, the Supreme Court may, in certain circumstances, dispense with the formal requirements for making a Will.
S.32 of the Western Australian Wills Act 1970 sets out that a document purporting to embody the testamentary intentions of the deceased constitutes a Will if the Court is satisfied that the person intended the document to constitute a Will. The Wills Act defines a document as being “any record of information including anything on which there is writing or anything on which there are marks, figures, symbols …”
In the technological age that we live in, can a text message, perhaps with an emoji, be a Will?
In late 2017, the Queensland Supreme Court case of Re Nichol; Nichol v Nichol & Anor* made news when an unsent text message that was saved in the drafts folder of a deceased person’s mobile phone, was held by the Court to constitute an informal Will.
In this case Justice Susan Brown found the deceased, who committed suicide, created the text “on or about the time that (he) was contemplating death”. The deceased set out in the text that he left his brother and nephew his house and superannuation entitlements and ended the text with the words “My will” followed by a smiley face. Justice Brown found that in specifying his assets, the deceased indicated an awareness of the nature and extent of his estate and despite the informal nature of the text it was sufficient to represent the deceased’s testamentary intentions, that is, it was a Will.
Although the courts may uphold the validity of informal Wills, it is always better to have a clearly written, formal Will to deal with a deceased’s estate. Proving an informal Will can be difficult, expensive and take time. The Court will generally require evidence of the deceased’s intentions and the circumstances in which the “document” was made. This will add to the cost and complexity of obtaining a Grant of Probate or Letters of Administration and administering the estate.
Despite finding that a text message constituted a Will, the Queensland case highlights the importance of obtaining sound legal advice in the preparation and execution of Wills. For more information on this article or any other issue in relation to Wills and estate planning, please contact our Wills and Estates team at HHG Legal Group on 1800 609 945.
*Re Nichol; Nichol v Nichol & Anor  QSC 220
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